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2016 DIGILAW 195 (UTT)

Champa Devi Rathore v. State of Uttarakhand

2016-05-04

K.M.JOSEPH, U.C.DHYANI

body2016
JUDGMENT : U.C. DHYANI, J. By means of the present appeal, the appellant, who is the writ petitioner, is challenging the judgment dated 25.05.2015 passed by the learned Single Judge. The writ petition was filed seeking the following reliefs: “(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order no. C-28/Ba.Vi.Pari./Aa.Ba.-Niyukti/2012-13 dated 22.05.2012 (Annexure no. 1 to the petition). (i-A) to issue a writ order or direction in the nature of certiorari for quashing the impugned order dated 19.5.2012 passed by the Respondent No. 2 (Annexure No. 19 to the writ petition) and also the order No. C-29 dated 22.5.2012 passed by the Respondent No. 6 (Annexure No. 20 to the writ petition). (ii) Issue a writ, order or direction in the nature of certiorari quashing the noting/order dated 19.5.2012 passed by the District Magistrate, Bageshwar, after summoning the same from the respondent no. 3 (as same has not been served on the petitioner till date). (iii) a writ in the nature of mandamus, commanding the respondents to permit the petitioner to continue serving as Anganbadi Karyakarti in Anganbadi Centre Basani Village Kharku Kanatoli, Block Kapkot, District Bageshwar.” 2. The learned Single Judge held that, since the private respondent Smt. Hema Koranga is relatively on the higher pedestal on the ground that she owns a residence as well as agricultural land in Basani Tok while the petitioner did not, there is nothing wrong in termination order of the petitioner and, at the same time, in granting appointment to the private respondent. 3. Pursuant to an Advertisement dated 27.07.2011 (Annexure No. 2), applications were invited for the post of Anganbadi Karyakatri in Anganbadi Centre, Basani. The Advertisement was subsequently amended and an amended Advertisement was issued, which provided that the name of Anganbadi Centre in question, i.e. Anganbadi Centre Basani, Village Kharku Kanatoli, Block Kapkot, District Bageshwar had been left out. The amended Advertisement, therefore, added Anganbadi Centre Basani, situated in Ward No. 7, Village Kharku Kanatoli, Block Kapkot, District Bageshwar. Applications were, therefore, invited for the said post. Appellant/writ petitioner was selected and was appointed as such. Thereafter, a complaint was filed by the private respondent to the Appellate Committee. The Appellate Committee rejected the complaint of the private respondent. Thereafter, the private respondent purportedly approached the Hon’ble Minister, who directed the authorities concerned “to do the needful”. Applications were, therefore, invited for the said post. Appellant/writ petitioner was selected and was appointed as such. Thereafter, a complaint was filed by the private respondent to the Appellate Committee. The Appellate Committee rejected the complaint of the private respondent. Thereafter, the private respondent purportedly approached the Hon’ble Minister, who directed the authorities concerned “to do the needful”. Thereafter, an inquiry was conducted by Sub Divisional Magistrate, Kapkot, about the residence of the appellant/writ petitioner as well as the private respondent. The Sub Divisional Magistrate submitted the inquiry report on 26.03.2012 holding that the private respondent, although a domicile of Basani Tok, is living in Managair Tok because of natural calamity. It was concluded by the Sub Divisional Magistrate/Inquiry Officer that the appellant/writ petitioner as well as the private respondent, both, belong to and are residents of Managair Tok. When the report was submitted, neither the appellant/writ petitioner nor the private respondent was living in Basani Tok. 4. Based upon such inquiry report, the impugned orders (Annexure No. 1, Annexure No. 19 & Annexure No. 20) were passed. Whereas the services of the appellant/writ petitioner were dispensed with, the private respondent was appointed on the said post. 5. It is the submission of the learned counsel for the appellant/writ petitioner that no opportunity of hearing was given to the appellant/writ petitioner while passing the order impugned. It is also submitted that, whereas the last date for submission of the application form was 20.08.2011, the private respondent filed the same with some documents subsequent thereto. The learned counsel for the appellant/writ petitioner submitted that the application of the private respondent ought to have been dismissed. It is further submitted that, once the complaint of the private respondent was dismissed by the Appellate Committee, there was no occasion for the Sub Divisional Magistrate, Kapkot, to have enquired into the matter, on the basis of which, the impugned orders have been passed. 6. One thing is clear on the basis of the documents brought on record that the impugned order has been passed without affording any opportunity of hearing to the appellant/writ petitioner even though she was heard when the Sub Divisional Magistrate enquired into the matter. No copy of the inquiry report was supplied to the appellant/writ petitioner. 6. One thing is clear on the basis of the documents brought on record that the impugned order has been passed without affording any opportunity of hearing to the appellant/writ petitioner even though she was heard when the Sub Divisional Magistrate enquired into the matter. No copy of the inquiry report was supplied to the appellant/writ petitioner. Secondly, the Sub Divisional Magistrate gives a finding in a round about manner; is cryptic; and does not deal with the issue of requirement for appointment of Anganbadi Karyakatri as per the Advertisement. 7. We, therefore, set aside the impugned order (Annexure No. 1) paving the way for respondent No. 4 to enquire into the matter afresh with opportunity of hearing to the affected parties. The affected parties will appear before respondent No. 4, i.e. the Sub Divisional Magistrate, Kapkot, on 01.06.2016 at 11:00 a.m. and, thereafter, respondent No. 4 shall proceed to enquire into the matter and pass a fresh order in accordance with law. Thereafter, it will be open to respondent No. 6 to pass a fresh order on the basis of the conclusions arrived at by respondent No. 4. This exercise shall be completed by respondent Nos. 4 & 6 within a period of three months from the date on which hearing takes place before respondent No. 4. Till fresh orders are passed in this respect, we direct that respondent No. 5 shall continue to hold the said post and her further continuation will be subject to fresh decision to be taken by respondent Nos. 4 & 6. It is made clear that respondent Nos. 4 & 6 will decide the matter untrammeled by any of the observations made by us in the body of this judgment. We have permitted the continuance of respondent No. 5 on the said post in the interest of the Institution. 8. The appeal is, accordingly, disposed of.